03/30/2005: "Protecting Your Right To Die"

By William J. Weissinger

As everyone who reads a paper or watches the national news now knows, in 1990 a woman named Terri Schiavo suffered brain damage when her heart stopped briefly from a chemical imbalance. Since that time, she has been in a persistent vegetative state while her husband and her parents have battled in Court – and no doubt in person – about whether or not she should be disconnected from the tube sustaining her body with food and water.

In his poem Mending Wall, Robert Frost said that "Good fences make good neighbors." That isn't true only of the stone wall which Frost's old farmer was repairing; it is equally true in a less literal sense of legal barriers. In the Terri Schiavo case, the nation has seen the daily unfolding of a tragedy: the shell of a woman in a persistent vegetative state, kept on life support against what we are told were her wishes; her husband and her parents, who should have been united in grief now bitter enemies. And all for the lack of one simple piece of paper: a living will – or, as it is called in this state – a health care directive.

In a health care directive, one expresses how one wants to be treated if ever diagnosed by one's attending physician to be in a terminal condition or in a permanent unconscious condition, where the application of life sustaining treatment would serve only to artificially prolong the process of one's dying. Terri Schiavo's husband states that she told him that she would not want to be kept alive artificially under such conditions. A credible statement? Although his credibility has been attacked by conservative commentators –one even referring to him as a Nazi – the facts are simple. As an attorney who does estate-planning, I have had probably hundreds of clients in my office expressing their wishes in Health Care Directives. But in my 23 years of practice as an attorney, I can recall only one client out of those hundreds who wanted to be kept "plugged in" to life support systems if in a state such as Terri Schiavo's. Almost universally, clients want to be "unplugged."

Had Terri Schiavo expressed her wishes in writing, this family tragedy would never have happened. Ms. Schiavo, or whatever was left of her, would have been disconnected from her feeding tube, and her body would have been dead and buried 15 years ago.

It is not unusual that Terri Schiavo didn't have a Health Care Directive: few young people do. And yet, we have all seen what can happen if one doesn't. The message: everyone needs to sign a Health Care Directive. Estate planners also recommend a "belt and suspenders" approach of also signing a Health Care Power of Attorney, where one officially appoints an agent to make health care decisions for you if you are unable to make them yourself. A Health Care Power of Attorney gives the holder of it the right to make medical decisions for you when you can't make them yourself, such as hiring – or firing – a physician, or having you moved home from a hospital for your last days. A Health Care Power of Attorney is particularly important for those not living in traditional relationships, such as unmarried couples living together, since the medical establishment will not recognize the rights of even a long-time life-partner to have any involvement in the health care decisions of a patient, unless those rights have been solidified in a Health Care Power of Attorney.

A Health Care Directive need not be expensive. While Health Care Powers of Attorney are more complicated and normally would require the assistance of an attorney, the first line of defense – the Health Care Directive – does not. If you don't have an attorney or want to avoid the expense of going to one, you can do a Health Care Directive yourself. The language is set out in the State of Washington's statutes at RCW 70.122.030. Your attorney can add more muscle to what the State statute provides, but if all you have is the statutorily-provided language, that is much better than nothing.

Strong interest groups are attempting to make it harder to end the life of a "Terri Schiavo"-type patient who does not have a Health Care Directive in effect. Although Ms. Schiavo's husband has prevailed in his battle to allow Ms. Schiavo to die in accordance with what he has testified were her wishes, some commentators are now suggesting that in the absence of a living will, there should be a presumption that the person wants to live. "It is life, not death, that our constitution protects," said Andy McCarthy in his March 28, 2005 article in National Review Online, entitled "PVS and the End of Life." High sounding words that unfortunately ignore the reality that under the circumstances in which Ms. Schiavo is "living" (if one can call it that), in my experience estate-planning clients when asked almost universally say they would want to be "unplugged." Some politicians are anxious to lead the battle to keep that from happening. In his March 29th Op Ed column in the New York Times, Paul Krugman reported that "Tom DeLay … believes that he's on a mission to bring a ‘biblical worldview' to American politics, and that God brought him a brain-damaged patient to help him with that mission."

As we have all seen with the Terri Schiavo case, this is important. And changes that the Schiavo case may bring to State or Federal law make it more important. People commonly put off estate-planning matters: don't let that happen to you.

And finally, even a Health Care Directive or a Health Care Power of Attorney, once fully executed, won't do you any good if it's locked away in your safety deposit box and no one else knows it's there. Make sure that you've given a copy of it to your medical provider and to your parents, children and the other important people in your life who might be called upon to make a difficult decision.




About the author: William Weissinger was graduated with honors from the University of Chicago Law School in 1982. Since 1990 he has had a general law practice in the San Juan Islands, focusing on real estate and real-estate litigation, general business law, and estate planning.